Authors Alliance Opposes the SMART Copyright Act of 2022

Posted March 22, 2022
Photo by Masaaki Komori on Unsplash

Last week, Senators Thom Tillis and Patrick Leahy introduced new legislation regarding technical protection measures used to protect copyrighted works online, entitled the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act of 2022. This new legislative proposal represents the latest in a multi-pronged effort to fortify protections for copyrighted works online (coming on the heels of the Copyright Office’s recent notice of inquiry about the development of technical protection measures, about which Authors Alliance submitted a comment). If passed, the SMART Copyright Act of 2022 would establish a procedure for the Librarian of Congress to designate standardized protection measures (“STMs”) to be adopted by online service providers. 

Authors Alliance strongly opposes the SMART Copyright Act of 2022. By requiring that digital platforms and service providers implement technical protection measures which could monitor content uploaded by users, the SMART Copyright Act of 2022 could lead to content “filtering mandate[s]” interfering with authors’ and other creators’ abilities to speak freely online. Authors and creators are the parties that copyright law is designed to protect, making the proposal one that is inconsistent with the very purposes of copyright. 

The SMART Copyright Act of 2022 would enable the Librarian of Congress to designate STMs to be implemented across industries, supposedly based on input from a diverse group of stakeholders. While the bill’s sponsors claim that the legislation “ensures that any designation of existing measures requires input from all stakeholders and assessment of public interest considerations,” it is telling that groups representing the content industry have praised the proposed legislation, while proponents of fair use and the free exchange of knowledge have opposed it. Even if the Copyright Office were to develop STMs that reflect a broad consensus across a diverse group of stakeholders, this would leave out the stakeholders who do not favor the widespread implementation of STMs in the first place (like Authors Alliance). Mandating that service providers use content moderating technology would impede the free flow of information and would not serve the interests of authors and creators who prioritize seeing their works reach wide audiences. 

To make matters worse, it is unclear that the Copyright Office possesses the technical expertise to evaluate and implement STMs. While the bill contemplates a new Chief Technology Officer within the Copyright Office to help develop such expertise, historically, the Copyright Office has not demonstrated that it has the technical expertise to wade into and settle questions about technical, complicated matters such as STMs. 

In the words of Public Knowledge policy counsel, Nicholas Garcia, “this proposal ​​would be disastrous for a free, creative, and culturally rich internet. Unfortunately, the SMART Act is anything but.” Because 2022 is an election year, it has been speculated that the SMART Act of 2022 is unlikely to pass during this legislative session. And Senator Leahy is planning to retire at the end of his term, meaning that Senator Tillis would need to find a new co-sponsor for the bill in future legislative sessions were to be reintroduced. Authors Alliance will be monitoring the bill’s progress, and will keep our readers informed about any further updates.